Pages

Tuesday, 29 September 2015

Whether litigant is supposed to sell his property for paying court fees?

The concept of "not possessed of sufficient means" isessentially a negative factor to be established by the claimant

and hence can only be proved by him by adducing positiveevidence of his assets, needs and expenditure and to convincethe Court that with the available resources, he is unable to setapart sufficient funds to pay court fee. The duty of the Court isonly to decide, on the basis of materials furnished, whetherreasonable grounds have been made out to believe such claim.This is all the more so, because of the social reality that theeconomic situation, availability of resources, and expenditure ofa person depend on various factors, including the size of thefamily, the number of dependents, other pressing necessities,priorities in life, the cost of living index, status in the society,etc. and hence, the person claiming indigency himself would bethe best judge to evaluate his priorities in life, which cannot besubstituted by the views of the Court unless the court finds itthoroughly unreasonable. Since the right to life under Article21 of the Constitution of India takes in right to dignified life,each person is entitled to make necessary provision for areasonable life of himself and family, apart from the barenecessities of food, shelter and clothing. The courts should notuse the golden scale to weigh the income and expenditure of a

person and decide how best he could have utilized his means,reduce the expenditure and could have saved money for payingcourt fees. In this regard, the observation of the court belowthat, even utilising the money from the available source forpayment of court fee, will not in any way affect the decentliving of the petitioners and that will not lead them to poverty ismispleaded. 15. In spite of several decisions mandating that the litigantsare not expected to sell their property, unfortunately, the courtbelow arrived at the wrong conclusion that, they could havemortgaged the property and raised the loan. Further, Paulosecase (supra) was distinguished on a factual premise that, in thatcase the extent of land involved was only one and half cents.The constitutional mandate, the laudable object of Order XXXIIIand spirit of all the decisions referred to above, uniformly callsfor a liberal approach while considering applications forindigency.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 21ST DAY OF JULY 2015 FAO.No. 98 of 2015 () VELUTHAPARAMBATH VASANTHA,W/O.VASU,AGED 49, Vs PURTHALATHKUNIYIL ALAKKADAN CHATHU,S/O.KRISHNAN,

Appellants are aggrieved by the rejection ofO.P.No.4/2012 of the Principal Sub Court, Thalassery, filedunder Order XXXIII Rule 1 CPC seeking leave of the court, tosue as indigent persons. 2. The predecessor of the appellants/petitioners, hadearlier filed a suit against the respondent herein. Due to thatenmity, the respondent allegedly committed murder of thepredecessor on 18/3/2010 at about 6.30.a.m.,using adangerous weapon. Thereafter, the heirs of the deceased filedthe present proceedings before the court below, seekingcompensation of a sum of Rupees Twenty Lakhs from therespondent. The court fee payable was Rs.1,78,400/-. Claimingthat the petitioners were not possessed of sufficient means to

pay the court fee, the present O.P. was filed. The respondentappeared and filed a counter affidavit. The District Collectorreported that the petitioners were not in possession of anyproperties within Kannur District. On the basis of the report ofthe Government, the counter affidavit and the materials onrecord, the court below held that the petitioners were possessedof sufficient means to pay the court fee and consequentlyrejected their application. 3. The above order is impugned in this appeal. Heard bothsides and examined the records. 4. According to the petitioners, the first petitioner who wasthe wife of the deceased, was working as an autorickhshawdriver and the petitioners 2 to 4 were students. They owned 59cents of land in Chendayad desom and also had joint possessionof 1.75 acres with the sister of their predecessor. It was statedthat the properties were planted with coconut and cashew treesand the annual income was Rs.20,000/- per year. Hence, theysought leave to sue as indigent persons. 5. The court below, on an evaluation of the materialsplaced, held that the petitioners were admittedly in possession of

landed properties which were planted with coconut and cashewtrees. The market value of the properties were not furnished.The court below further held that the second petitioner was nowworking as a Software Engineer at Kozhikode and the 3rdpetitioner as a mason. It was held that they can at leastmortgage a portion of the properties to raise the court feepayable. It was also held that the decisions cited by thepetitioners were not applicable to the facts and circumstances ofthe case. 6. It is pertinent to note that the materials on recordshowed that the head of the family was the victim of a crime. Itwas admitted case of the petitioners that they owned 59 cents ofland and had half share over 1.75 acres of land. They had alsodisclosed the income from the properties. The view of the courtwas that they could have mortgaged a portion of theproperties, to raise the court fee. It appears that evidence waslet in to show that, as on the date of evidence, the son of the firstpetitioner had completed his study and obtained a job. However,the details of his income were not on record. 7. Before the court below, various decisions were placed to

support the case of the petitioner. In Sumathikutty AmmaKamalamma and others v. Narayani PanikkathyKarthiyayani and others (1972 KLT 783), which is one of theearliest decisions on this point, it was held that the mere factthat the petitioner is stated to have some interest in immovableproperty by itself, should not be taken to mean that he has themeans to pay the prescribed court fee. The real test is whetherthe petitioner is in a position in the ordinary course to converthis possessions, if any, into liquid cash without undue hardshipand delay for paying the requisite court fee. It was further heldthat the court has also a duty to ensure that in no genuine case,the cause of the litigant should fail, if the enquiry reveals that inthe ordinary course, he is not in a position to raise requisiteamount to pay court fee. The court below also referred to thedecisions reported in Basil Thomas v. Joseph (2013 (2) KLJ664) and Paulose @ Paulo v. Elias K.Varghese and another(2012 (1) KLJ 807). In Paulose's case, it was held that the lawdoes not expect the petitioner to make a distress sale of his onlyproperty and to pay the court fee and thereafter live in penuryor abject poverty. It was reiterated that the benefit under the

Code is conferred on persons without "sufficient means" and notwithout any means at all. What is contemplated is not the actualpossession of property, but sufficient means. Even thoughsufficient means is not the capacity to raise sufficient funds,there must be a liberal approach in construing what capacity is.In Basil Thomas case, a Bench of this Court (to which on oneof us was a party) reiterated that the availability of assets orwealth does not necessarily mean that a person will have thesufficient means to pay the court fee. It was opined that there isno rigid formula which confines the relief under Order XXXIII toonly persons who were essentially striving on poverty line. 8. The Hon'ble Supreme Court had occasion to deal withthe above topic in a decision which was not placed before thecourt below. In Mathai M.Paikeday v. C.K.Antony [(2011) 13SCC 174], it was held that expression 'sufficient means'contemplates the ability or capacity of a person in the ordinarycourse to raise money by available lawful means to pay the courtfee. In Jayaraj K.K. v.Kalyani (2010 (3) KLJ 853), it was heldthat the plaintiff, after remitting 1/10th fee payable at the time ofinstitution of the suit, is still entitled to claim indigency, due to

an honest belief that he would be able to pay the court fee at alater point of time. In A.Prabhakaran Nair v.K.P.Neelakantan Pillai (1987 (2) KLT 376), it was held thatpossession of sufficient means refers to possession of sufficientrealizable property. The property that is yet to be realised or anasset which is not within the immediate reach of the plaintiff tobe converted into cash for payment of court fee cannot be takeninto account in calculating sufficient means . 9. Underlying principle in all the above cases is that thepossession of immovable property does not by itself indicate thatthe one has sufficient means to pay the court fee. The abovedecisions also emphasise the duty of the courts to construe theprovisions in a liberal, pragmatic way and without sacrificing thesocial justice element and the Constitutional demands. It washeld that the benefit of statute is conferred on persons withoutsufficient means and not without any means at all. The viewtaken by the courts in all the above decisions consistentlyexhibits the anxiety of the courts to ensure that every litigant,though not poor, but does not posses sufficient means to seek hisredressal of grievance, shall not be deprived of the right to

access to justice. Article 39A of the Constitution of India directsthe State to ensure this solemn object. The scheme of thestatute also gives sufficient indication of its anxiety to ensureaccess to justice to the poor and needy. 10. Reference to Order XXXIII of Code of Civil Procedureindicate that it is eminently pro litigant, and has a strong socioeconomic content. Order XXXIII provides a self containedscheme to facilitate access to justice to the poor. Itcontemplates a mechanism to weed out unnecessary applicationsat the threshold, by conducting an enquiry into the means of thepetitioner under Rule 1A, to be done by the Chief MinisterialOfficer of the Court, unless the Court otherwise directs. Itfurther provides for examination of the applicant or his agentunder Rule 4 and after conducting sufficient enquiry, to allow orto reject the application under Rule 5. Thereafter, a furtherprocedure is contemplated under Rule 6 for receiving evidenceregarding the indigency with notice to the Government Pleaderand opposite parties. This detailed two tier mechanisumprovided under the Act with its inbuilt safeguards is intended toensure that only genuine, bona fide and legitimate persons seek

indigency. 11. Even after permitting the person to institute asuit as an indigent person under Rule 9 the court continues toretain the power to withdraw at any time, the permission tosue as indigent person. Rules 10,11, 11A and 14 provides forrecovery of costs and the court fee. where the plaintiffsucceeds, looses or abandon the case. A Perusal of the aboveprovisions show that an indigent person is not completelyexempted from payment of court fee and the liability to paycourt fee at initial stage is only deferred to a later stage, to berecovered in accordance with the outcome of the litigation.(Ref. R.V.Dev v.Government of Kerala [(2007) 5 SCC 698] 12. The spirit of the Statute, which is in tune withArticle 39A of the Constitution, is also evident from Rule 9A,which permits the court to assign a pleader to an unrepresentedindigent person. Rule 18 empowers the Government to providefor free legal services to indigent persons. Rule 17 providesthat even an indigent person raising set off or counter claim, isentitled to claim indigency. In Mathai M.Paikaday's case (supra),the Hon'ble Court referred to the earlier judgment in A.A.Haja

Muniuddin v. Indian Railways [(1992) 4 SCC 736} wherein itwas held that access to justice cannot denied to an individualmerely because, he does not have the means to pay theprescribed fee. In Union Bank of India v. KhaderInternational Construction [(2001) 5 SCC 22] it was held thatorder XXXIII is a benevolent provision intended to help poorlitigants. It is pertinent to note that even original heading ofOrder as 'suits by paupers' was substituted by Act 104 of 1976on a reasoning that the expression pauper was in appropriateand did not convey the real intention of the statute. 13. Constitutional mandate under Article 39A and OrderXXXIII, as explained in the various decisions referred above,impose a solemn duty on the courts not only to ensure thataccess to justice is not denied to the poor and needy, but also toensure that they have access to justice. The various provisionsincorporated in the Order XXXIII are intended to act as tools foradvancing justice to the poor and not to act as spokes in theirtread towards justice. 14. The concept of "not possessed of sufficient means" isessentially a negative factor to be established by the claimant

and hence can only be proved by him by adducing positiveevidence of his assets, needs and expenditure and to convincethe Court that with the available resources, he is unable to setapart sufficient funds to pay court fee. The duty of the Court isonly to decide, on the basis of materials furnished, whetherreasonable grounds have been made out to believe such claim.This is all the more so, because of the social reality that theeconomic situation, availability of resources, and expenditure ofa person depend on various factors, including the size of thefamily, the number of dependents, other pressing necessities,priorities in life, the cost of living index, status in the society,etc. and hence, the person claiming indigency himself would bethe best judge to evaluate his priorities in life, which cannot besubstituted by the views of the Court unless the court finds itthoroughly unreasonable. Since the right to life under Article21 of the Constitution of India takes in right to dignified life,each person is entitled to make necessary provision for areasonable life of himself and family, apart from the barenecessities of food, shelter and clothing. The courts should notuse the golden scale to weigh the income and expenditure of a

person and decide how best he could have utilized his means,reduce the expenditure and could have saved money for payingcourt fees. In this regard, the observation of the court belowthat, even utilising the money from the available source forpayment of court fee, will not in any way affect the decentliving of the petitioners and that will not lead them to poverty ismispleaded. 15. In spite of several decisions mandating that the litigantsare not expected to sell their property, unfortunately, the courtbelow arrived at the wrong conclusion that, they could havemortgaged the property and raised the loan. Further, Paulosecase (supra) was distinguished on a factual premise that, in thatcase the extent of land involved was only one and half cents.The constitutional mandate, the laudable object of Order XXXIIIand spirit of all the decisions referred to above, uniformly callsfor a liberal approach while considering applications forindigency. 16. In the light of the above findings, order of the courtbelow is not sustainable and is liable to be set aside. In theresult, the appeal is allowed and the impugned order is set